N9827

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 701 OF 2019

BETWEEN
ROSE JOHN
Plaintiff

AND
MOTOR VEHICLE INSURANCE LIMITED
Defendant

Waigani: Linge AJ
2022: 5th August

PRACTICE AND PROCEDURE – application for summary judgment in a personal injury claim – application of O12 r 37 – application misconceived

Cases Cited:
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 
Curtain Bros (Qld) Pty Ltd.  Kinhil Kramer Pty Ltd v The State [1993] PNGLR 285
Kappo No.5 v Wong Pty Ltd [1998] PNGLR 544
Alfred Alan Daniel -v- Pak Domoi Ltd [2009] PGSC 7; SC 970

Counsel:

Mr. B Koae, for the Plaintiffs
Mr M Nale, for the Defendant

RULING

17th August, 2022

1.	LINGE AJ:	This is a ruling on a Notice of Motion filed on the 27 July 2022, by the plaintiff seeking Summary Judgment pursuant to Order 12 Rules 37 and 38 of the National Court Rules and for assessment of damages pursuant to Order 12 Rules 28 of the National Court Rules. I heard the application on the 3 August 2022.

Facts
2.	The plaintiff alleges in the Amended Statement of Claim that on 17 October 2017, she was travelling as a passenger in a “25-Seater Coaster Bus” on the Okuk Highway section of the road when the bus collided with another coaster bus.

3.	The plaintiff alleges that the collision was the result of the driver being negligent in his driving.  The plaintiff claims that as a result of this collision, she sustained injuries to her body in particular a fractured mid-shaft left ulnar/radius.

4.	The plaintiff claims that the defendant has offered to settle the claim but had not agreed on the quantum as a result she filed this application.

Submissions

For the plaintiff

5.	Mr Koae for the plaintiff submits that the issue of liability is not in dispute and the only question to be determined is the quantum. 

6.	He submits that although the defendant had made an offer it did not positively confirmed the settlement in the amount of K15, 000.00.

7.	Counsel submits further that even though there has been negotiation between the plaintiff and defendant on possible settlement, the defendant had not been more forthcoming on the offer. Thus, it is only just that this court determines the appropriate measure of damages.

For the defendant

8.	Mr Nale for the defendant contends that at no time during the course of the proceedings had the defendant admitted liability.  He submits that the two (2) letters dated 22 June 2022 and 28 June 2022 contained offers on a “without prejudice basis”, which were not accepted by the plaintiff.  

9.	Counsel further submits that he had notified the plaintiff that it will be futile for her to pursue this claim and that an application for Summary Judgment would not be successful as the defendant had filed an Amended Defence.   
 
10.	Counsel further contends that one of the matters raised in the letter of 28 June 2022 was the need for the plaintiff to file evidence to support her claim.  The plaintiff has not filed any affidavit evidence save for the Affidavit of Bernard Koae which Counsel submits is inadmissible as it contains hearsay evidence.  

11.	Mr. Nale also submits that the irregularities in the Amended Statement of Claim pointed out to the plaintiff on the 28 June 2022 have not been cured. The irregularities are the plaintiff’s failure to disclose the following in her pleadings:

(i)	The details of the vehicles involved in the alleged accident;
(ii)	The cause of action; and
(ii)	The tortfeasor.

12.	Counsel further submits that his request to the plaintiff’s lawyer on the 27 July 2022 for the plaintiff to undergo medical review before an offer for settlement would be made was ignored by the plaintiff.

13.	Mr. Nale contends that Order 12 Rule 37 (c) specifically states that Division 4 – Summary Disposal does not apply to a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person. He submits that the Court does not have jurisdiction to deal with this application.
The Law
14.	The law relating to summary judgment is settled in this jurisdiction by the Supreme Court in Tsang v Credit Corporation (PNG) Pty Ltd [1993] PNGLR 112 and affirmed in Curtain Brothers (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285. The Supreme Court in each case at page 117 and at page 288 respectively settled that the two (2) elements to be satisfied are:

“(1)	Evidence of the facts proving the essential elements of the claim;
	and
	
(2)	The plaintiff or some responsible person gives evidence that in 	his belief there is no defence.”
15.	This trite learning is followed by subsequent plethora of cases both in the Supreme Court and National Court.
16.	 Courts have not deviated from the intent of Order 12 Rule 38 (1) of the National Court Rules, which stipulates:

	“1.	Where on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff –

 		  (a)	there is evidence of the facts on which the claim or part is based; and 

		    (b)	there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, 

the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.”

17.	At this juncture I will pause in my consideration of the plaintiff’s application, and deal with the jurisdictional issue raised by O12 r 37 of the National Court Rules. Rule 37 reads: 

“This Division applies to all proceedings except proceedings which include:

	(a)	a claim by the plaintiff for, libel, slander malicious prosecution, false imprisonment, seduction, or breach of promise of marriage; or
 	(b)	a claim by the plaintiff based on an allegation of fraud; or
	(c)	a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person” [my underlying]

18.	Clearly the summary disposal procedure is inapplicable to certain categories of claims including claim for damages for personal injuries. The intention of Order 12 Rule 37 of the National Court Rules is not to enter summary judgment at interlocutory stage of certain categories of claims but to entitle these claims to substantive hearing in a trial proper. An analogous case on point is Kappo No.5 v Wong [1998] PNGLR 544 wherein the Supreme Court at p.549 stated: 

“It is clearly intended that such allegations must be dealt with at the substantive trial”.

19.	In Alfred Alan Daniel -v- Pak Domoi Ltd [2009] PGSC 7; SC 970 the Supreme Court at p.9 held “…it is abundantly clear that summary judgement is not available in a claim based on fraud”.

20.	The cause of action here is a claim for damages in respect of personal injury to Rose John, the plaintiff herein. The plaintiff seeks entry of summary judgment which is not available pursuant to paragraph (c) of Rule 37. 
21.	I therefore will not consider the submissions of counsels on the merits and demerits of the application seeking entry of summary judgment relating to personal injury as the Court lacks jurisdiction. The proceeding will proceed to substantive hearing. 
Order
2.	The Order of the Court:
1		The Plaintiff’s application is misconceived and is dismissed. 
2		The plaintiff shall within 14 days set the proceeding down for trial.
3		Plaintiff shall pay costs of this application.
4		Time is abridged to time of settlement by Registrar which takes place forthwith.
Ordered Accordingly
_________________________________________________________
Eda Legal Services: Lawyers for the Plaintiffs		
Jema Lawyers: Lawyers for the Defendants